State Court Invalidates Arkansas Ban on Same-Sex Marriage

In Wright v. State of Arkansas, (AR Cir. Ct., May 9, 2014), an Arkansas state trial court held that Arkansas' state constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause. The suit was brought by 12 same-sex couples seeking to marry in Arkansas and 8 couples who have married in states allowing same-sex marriage who want their marriages recognized in Arkansas.  In striking down the state ban, the court added:

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

According to USA Today, while state Attorney General Dustin McDaniel personally supports same-sex marriage, his office said after the ruling:

in keeping with the Attorney General's obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.

  [Thanks to Alliance Alert for the lead.]

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

Alaska Supreme Court Holds Tax Exemption Unconstitutionally Discriminates Against Same-Sex Couples

In State of Alaska v. Schmidt, (AK Sup. Ct., April 25, 2014), the Alaska Supreme Court held that a state tax exemption program that discriminates against same-sex couples violates the state constitution's equal protection clause. Same-sex marriages are not permitted or recognized in the state. Alaska exempts from municipal property tax up to $150,000 in value of a home of a senior citizen or disabled veteran.  The full exemption is available where the senior's or veteran's spouse who co-owns the home also lives there.  However the exemption is reduced where a same-sex partner who co-owns the home lives there. According to the court, this creates an equal protection problem:

we hold that committed same-sex domestic partners who would enter into marriages recognized in Alaska if they could are similarly situated to those opposite-sex couples who, by marrying, have entered into domestic partnerships formally recognized in Alaska.

Suit Challenges Ohio's Refusal To Allow Same-Sex Marriages

In the wake of a federal district court ruling two weeks ago that Ohio's refusal to recognize same-sex marriages performed elsewhere is unconstitutional (see prior posting), a new federal lawsuit was filed yesterday challenging Ohio's ban on issuing marriage licenses to same-sex couples who wish to wed in Ohio.  The complaint (full text) in Gibson v. Himes, (SD OH, filed 4/30/2014), contends:

Ohio Rev. Code § 3101.01 and OH Const. Art. XV, §11 violate fundamental liberties that are protected by the Freedom of Association Clause of the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment on their face.

Cincinnati Enquirer reports on the filing of the lawsuit.

Church Synod and Various Clergy Sue Claiming North Carolina Same-Sex Marriage Ban Infringes Their Free Exercise Rights

A federal lawsuit with a different twist challenging North Carolina's ban on same-sex marriage was filed yesterday. In addition to same-sex couples, the plaintiffs are a religious denomination-- the United Church of Christ-- and individual clergy from UCC, Lutheran, Baptist, Unitarian-Universalist, and Reform Jewish congregations. The complaint (full text) in General Synod of the United Church of Christ v. Cooper, (WD NC, filed 4/28/2014), claims, among other things, that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony, and that this infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage. The same-sex couples also assert due process and equal protection claims.  UCC has issued a press release and created a website with additional information on the case. The Charlotte Observer also reports on the case. [Thanks to Don Clark for the lead.]

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Georgia Lawsuit Is Latest To Challenge Same-Sex Marriage Ban

Lambda Legal announced yesterday that it has filed suit in federal district court in Georgia on behalf of three same-sex couples and a widow challenging Georgia's statutory and state constitutional bans on same-sex marriage. The complaint (full text) in Inniss v. Aderhold, (ND GA, filed 4/22/2014) was filed as a class action and challenges both the ban on same-sex marriage and the non-recognition of same-sex marriages performed in other jurisdictions. According to a Washington Post compilation, with the filing of this lawsuit, only four states-- Alaska, Montana, North Dakota and South Dakota-- have same-sex marriage bans that are not being challenged in court; and a suit is in the offing in South Dakota.

Article Traces Evolution of Obama's Position On Same-Sex Marriage

Today's New York Times Magazine carries a lengthy article titled How the President Got to ‘I Do’ on Same-Sex Marriage. It traces the evolution of President Obama's public position on the issue.

10th Circuit Hears Oral Arguments In Oklahoma Same-Sex Marriage Case

As reported by the Los Angeles Times, the U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in  Bishop v. Smith.  An audio recording of the full oral arguments is available from the court's website. In the case, an Oklahoma federal district court held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the 14th Amendment.  The same 10th Circuit panel heard arguments last week in a case challenging Utah's same-sex marriage ban. (See prior posting.)

Ohio's Ban On Recognizing Same-Sex Marriages From Elsewhere Invalidated, But Most of Order Stayed Pending Appeal

In Henry v. Himes, (SD OH, April 14, 2014), an Ohio federal district court held that Ohio's bans on recognizing same-sex marriages validly performed in other jurisdictions are "facially unconstitutional and unenforceable under any circumstances." Legal Times reports on the decision. Judge Black had announced earlier this month that this ruling was coming. In a follow-up opinion today (full text) the court stayed its broad ruling on facial unconstitutionality  while the case is appealed  However the court refused to stay the order as to the "as applied" claims of the four same-sex couples who brought the lawsuit. Judge Black ordered the state to issue birth certificates for these Plaintiffs’ children which list both lawfully married same-sex spouses as parents.

Italian Court Orders Recognition of Same-Sex Marriage Performed In New York

In Italy for the first time last Thursday, a court ordered the recognition of a same-sex marriage.  UPI reports that a judge in Grosetto ordered the local registry to record the marriage of two men who were married in a civil ceremony in New York in 2012. The court said that the Italian civil code "contains no reference to sex in relation to the requisites" for marriage. The Italian Bishops' Conference issued a statement saying that the ruling raises serious questions.

10th Circuit Hears Oral Arguments In Challenge To Utah's Ban On Same-Sex Marriage

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the Utah same-sex marriage case, Kitchen v. Herbert. Audio of the full oral arguments is available online. Equality on Trial has a written summary of the oral arguments. In the case, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution. (See prior posting.)

Missouri Court Denies TRO To Prevent Same-Sex Couples' Joint Tax Filings

In Messer v. Nixon, (MO Cir. Ct., April 4, 2014), a Missouri state court judge refused to issue a temporary restraining order to prevent state tax officials from accepting joint returns from same-sex couples. The court concluded that plaintiffs had not shown the irreparable injury necessary for issuance of a TRO.  The court said: "should the ultimate outcome of this litigation establish that such an income tax filing was improper resulting in state income taxes being illegally avoided or refunded, the State has, as it always has had, the right to challenge that filing and seek recovery." Links to all the pleadings in Messer v. Nixon at on Marriage Equality Wikia. Missouri Gov. Jay Nixon's office issued a statement after the April 4 decision, defending the Executive Order that permits same-sex joint filing as being consistent with Missouri law which requires state tax conformity to federal tax definitions.

Quick Ruling on Same-Sex Marriage Sought In North Carolina

The North Carolina ACLU yesterday announced several legal steps it has taken to get a quick ruling on recognition of same-sex marriages in the state. In a case that was initially filed in 2012 and expanded in 2013, plaintiffs this week filed a motion for a preliminary injunction so that a same-sex North Carolina couple married in Massachusetts can get their child who suffers from cerebral palsy on the private health insurance policy of one of the parents (instead of remaining on Medicaid).  Separately, the organization filed a new lawsuit on behalf of three same-sex couples married elsewhere seeking recognition in North Carolina of their marriages. The suit asks for a prompt ruling because one member of each couple has a serious medical condition. AP has more on the legal moves.

Supreme Court Denies Review In New Mexico Same-Sex Wedding Photographer Case

The U.S. Supreme Court today denied certiorari in Elane Photography v. Willock,  (Docket No. 13-585, cert. denied 4/7/2014). (Order List.) In the case, the New Mexico Supreme Court held that the New Mexico Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples. It concluded that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.)

Federal Judge Announces He Will Strike Down Ohio's Refusal To Recognize Same-Sex Marriages From Elsewhere

The Cleveland Plain Dealer reports that at a Friday hearing in a Cincinnati, Ohio federal district court in Henry v. Wymyslo, Judge Timothy Black announced:

I intend to issue a written decision and order by April 14 striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states.

The advance announcement gives the state time to prepare an appeal that can be filed immediately after the ruling.  A spokesman for Ohio Attorney General Mike DeWine says that an appeal is planned. The lawsuit was filed by four same-sex married couples and originally sought narrower relief-- an order requiring the  names both same-sex spouses to be entered on the birth certificates of their children. (full text of complaint in Henry v. Wymyslo, (SD OH, filed 2/10/2014).

Class Action Challenge To Virginia's Same-Sex Marriage Ban Stayed As Plaintiffs Intervene In Appeal of Parallel Case

In Harris v. Rainey, (WD VA, March 31, 2014), Virginia federal district judge has cut through the procedural complexity of competing challenges to Virginia's ban on same-sex marriage by staying proceedings in one case while a separate challenge works its way through the 4th Circuit Court of Appeals.  In February, a different Virginia federal district court in Bostic v. Rainey issued a preliminary injunction striking down Virginia's ban on same-sex marriage, but stayed the injunction pending appeal. (See prior posting.) Just before the court handed down its decision in Bostic, Virginia's attorney general filed a Notice of Change of Legal Position with the court indicating that he will not defend the constitutionality of Virginia's ban. This However left two clerks of court who were also defendants to carry the case forward. (Attorney General's FAQ page on the case.) However in the Harris case-- a class action on behalf of 14,000 same sex couples filed by the ACLU (links to pleadings)-- no defendant was willing to defend the state's ban. Meanwhile the plaintiffs in Harris petitioned the 4th Circuit for, and on March 14 were granted, the right to intervene as a plaintiffs in the Bostic appeal (Legal Times), despite opposition to their intervening by the original lawyers of plaintiffs in Bostic. They preferred that the Harris plaintiffs merely file an amicus brief. (National Law Journal.) [Thanks to How Appealing for the lead.]

Suit Challenging Ohio's Refusal to Recognize Same-Sex Marriage Dropped When Couple Gets Family Health Insurance Policy

AP reports that a gay couple in Cleveland on Friday voluntarily dismissed a lawsuit they had filed last month challenging Ohio's refusal to recognize same-sex marriages.  Al Cowger Jr. and Tony Wesley Jr., who were married in New York state in 2012, sued when they were unable to obtain family health insurance coverage for themselves and their adopted daughter through the federal health insurance marketplace. They were initially told that a family policy was not available because Ohio does not recognize their marriage.  However this week they were finally able to obtain a family policy through the Healthcare.gov website. On March 14, the Department of Health and Human Services told insurance companies that starting next year, if they offer policies to opposite-sex spouses, they cannot choose to deny coverage to same-sex spouses.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.